Whelan v Police

Case [2005] SASC 205

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

WHELAN v POLICE

Judgment of The Honourable Justice Gray

10 June 2005

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - LARCENY OR STEALING

CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - MODES OF PROOF - FINGERPRINTS

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS

Appeal against conviction - appellant convicted of serious criminal trespass in non-residential building and larceny - identity at issue at trial - reversal of onus of proof - Crown adduced evidence of the appellant's fingerprints on glass door of cabinet - police destroyed glass door prior to trial -  appeal on grounds that Crown had failed to make out its case and that destruction of crucial Crown evidence called for permanent stay of proceedings - evidence relating to glass door crucial to Crown case - considerable confusion regarding evidence surrounding glass door - magistrate erred in not ordering a stay of proceedings - appellant denied opportunity to effectively cross-examine Crown witnesses on evidence relating to glass door - confusion surrounding evidence relating to glass door and destruction of door amounted to unfairness to accused and miscarriage of justice - absence of bad faith by police did not preclude stay being ordered - Held:  appeal allowed - permanent stay of proceedings ordered.

Criminal Law (Consolidation) Act 1935 (SA) s 132, s 169, referred to.
Holmden v Bitar (1987) 47 SASR 509; Duncome-Wall v Police (1998) 197 LSJS 398; Moffa v R (1977) 138 CLR 601; Chamberlain v R (No 2) (1984) 153 CLR 521; Hoch v R (1988) 165 CLR 292; R v Falconer (1990) 171 CLR 30; Shepherd v R (1990) 170 CLR 573; Peacock v R (1911) 13 CLR 619, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"destruction of evidence"

WHELAN v POLICE
[2005] SASC 205

Magistrates Appeal

GRAY J:

Introduction

  1. This is an appeal against conviction. 

  2. The issue at trial was whether the prosecution had established identity.  It was said that the Crown had not made out its case.  Alternatively, it was said that the destruction of a critical item of evidence should have led to a permanent stay of proceedings.

  3. On 21 December 2004 the appellant, Brett Charles Whelan, was convicted of the offences of serious criminal trespass in a non-residential building[1] and larceny.[2]  He was sentenced to 15 months’ imprisonment with a non-parole period of nine months.  The sentence was suspended on his entry into an 18-month unsupervised good behaviour bond. 

    [1] Section 169 of the Criminal Law (Consolidation) Act 1935 (SA).

    [2] Section 132 of the Criminal Law (Consolidation) Act 1935 (SA).

  4. It was alleged at trial that on about 7 March 2003 at Dernancourt the appellant entered “Old and New Antiques”, an antique store, as a trespasser and stole various items with the approximate value of $2,500.

  5. It was the Crown case that the appellant’s…

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Whelan v Police [2005] SASC 205
Case
[2005] SASC 205
Decision Date

CaseChat Overview and Summary

Whelan v Police involved an appeal against a conviction for serious criminal trespass and larceny, with the identity of the accused being a central issue. The appellant contested the admissibility of fingerprint evidence due to the destruction of the glass door on which the fingerprints were found. The appeal was based on the argument that the Crown failed to prove its case and that the destruction of crucial evidence warranted a permanent stay of proceedings.

The court examined the legal issues of whether the magistrate improperly reversed the onus of proof and whether the destruction of the glass door constituted a miscarriage of justice, entitling the appellant to a stay of proceedings. The court found that the magistrate indeed reversed the onus of proof, and the destruction of the glass door led to significant confusion and unfairness, depriving the appellant of the opportunity to effectively cross-examine witnesses. The court held that the absence of bad faith did not preclude the order of a stay.

The court granted the appeal, set aside the convictions and sentence, and ordered a permanent stay of proceedings. This decision emphasised the importance of preserving crucial evidence and the potential consequences when such evidence is destroyed without justification. The court acknowledged that the unfairness and the miscarriage of justice resulting from the destruction of the glass door justified the stay of proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

During the hearing of the appeal, the submission was advanced that the magistrate had reversed the onus of proof. Application was made to amend to include this ground. The appeal proceeded on the basis that the amendment was allowed.Destruction of Evidence As earlier observed, after photographs of the glass door on which fingerprints were discovered were taken, the glass door was “thrown out”. Constable Spence, the crime scene investigator, gave evidence that the destruction of the glass door was in accordance with general police practice. Having labelled and photographed the fingerprints, Constable Spence considered that the glass door was no longer needed. He gave the following evidence:Q.The glass door that you took from the shop down to the Holden Hill Police Station and is depicted in photographs 1 and 2, what did you do with that glass door after you photographed the prints.A.I took all the stickers off the door and I have attached them to my work file and the glass itself I believe I just threw that glass door out.Q. You believe you just threw it out.A. Yes.Q. Do you know when you threw that glass door out.A. Some time after 7 March.Q. It was before 5 December.A.Yes, I imagine it would have been on the same night I would have put it in the rubbish then.Q.By what authority did you destroy that glass.A. I think I spoke to people at the shop about whether they wanted the glass back.Q.So you got permission from the owner of the glass not to return it to them. Are there any standing orders about destruction of evidence which you photographed for fingerprint purposes.A.The evidence is what I photographed so the evidence was maintained.Q.Do you have any standing orders about the destruction about the primary object upon which the fingerprints were located, photographed and examined.A.No.Q. There are no standing orders.A.No, the normal procedure for crime scene taking photographs is to throw away pieces of glass.Q. The normal procedure.A. Yes. When cross-examined, Constable Spence maintained that the destruction of the glass door after photographs of fingerprints had been obtained accorded with normal police practice:A.There are a number of orders about dealing with exhibit property, dealing with having items photographed and being able to dispose of them because of storage facility problems with anything that the police may gather, but items of no value as a piece of broken glass is a decision made by the individual crime scene investigator, but the normal practice for most crime scene investigators is to throw it out.Q.When you say of no value, what constitutes something of value. A value to whom.A.A value to I guess the person who owned it. If the person said they don’t want it anymore there is no value. It’s a piece of broken glass. It’s valueless.Although Constable Spence destroyed the glass door believing it to be both valueless and useless, the course of the trial demonstrated that the glass door was relevant, probative and in the circumstances a critical item of evidence. It should have been preserved. The police practice that allowed the glass door to be destroyed should be amended to ensure that such items of evidence are preserved.Pre-Trial Disclosures

Decision

Reasons for decision

The destruction of the glass door gives rise to unfairness justifying a stay of proceedings. The absence of any bad faith on the part of the prosecution does not obviate the unfairness caused by the appellant’s lost opportunity to fully examine the evidence and challenge the prosecution case. As observed by Lander J in Duncome-Wall v Police:[6]The intentions or motives of those responsible for the prosecution were irrelevant since a combination of circumstances can arise entirely innocently but as a result it would be oppressive to proceed. …In the circumstances of this case the destruction or the obliteration of the evidence was such as to lead to unfairness and, in my opinion, was such as to justify a permanent stay of the criminal proceedings. There was nothing that could have been done to rectify or remedy the absence of the evidence. [6] Duncombe-Wall v Police (1998) 197 LSJS 398 at 409.Conclusion The appellant is granted leave to amend his notice of appeal to raise the complaint that the magistrate reversed the onus of proof. The appeal is allowed. The convictions and sentence are set aside. Having regard to the earlier conclusions concerning the reversal of the onus of proof and the destruction of the glass door, an order is made permanently staying the proceedings.

Ratio Decidendi

Legal Principle Established

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